‘No longer fit for purpose’: ACCC weighs in on e-conveyancing framework

By Emma Ryan|04 December 2019

The ACCC has handed down its report on e-conveyancing market reform, highlighting the need for greater competition, clear rules and certainty for industry stakeholders.

Released this week, the ACCC report follows consultation with ARNECC and its members regarding regulatory framework for e-conveyancing in Australia.

“The current uncertainty facing the e-conveyancing market needs to end,” the ACCC said.

“In light of the mandating of e-conveyancing and the emergence of competition in various state jurisdictions, the regulatory framework for e-conveyancing in Australia is no longer fit for purpose.

“This market has been evolving over the past two years without a clear regulatory framework and unless deliberate action is taken by the responsible decision-makers to resolve the lack of certainty, competition in the market will falter, which will be to the detriment of end users.”

The ACCC noted that the e-conyeancing market is at a “turning point”, whereby it’s become essential for policymakers to take the necessary steps “to implement a pro-competition market model”.

If one is not implemented, the body said, “then it is unlikely that new entrants will be able to sustain a presence in the market”.

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“This will leave a monopoly that will need robust regulation for the sake of the interests of stakeholders and end users,” the ACCC noted.

“The alternative to competition in this market is an entrenched monopoly, likely with forgone opportunities for innovation, lower costs and improved quality of service. Further, the regulation of a monopoly is a complex, timely and costly process, and is a sub-optimal result.”

One option to implement a “pro-competition” market model is interoperability, according to the ACCC.

Defined as being an enabler of allowing two or more electronic lodgement network operators (ELNO) to communicate with one another via the sharing of an agreed data set, the concept of interoperability started to make headway in the legal profession earlier this year.

“There are many aspects that need to be worked through before an appropriate model of interoperability can be implemented, and that work needs to be done now by ARNECC and industry,” the ACCC report noted.

“The ACCC strongly prefers a nationally consistent approach. ARNECC is well positioned as the industry expert to develop and deliver an appropriate regulatory framework that can facilitate competition in the market across all jurisdictions. A fragmented system would be problematic.

“For this national approach to occur, however, state and territory governments need to agree upon an approach. ARNECC cannot do this alone. The ACCC believes ARNECC is the best placed to carry this reform forward and should be resourced to do so.

“However, the ACCC acknowledges that ARNECC will need the support of their respective treasuries and other relevant policy agencies in order to be equipped to make the necessary decisions required to adopt a competitive market model, and for that matter how to effectively regulate the market whichever form it takes.”

That being said, the ACCC added: “Given the urgency, however, the ACCC believes that if a national approach cannot be achieved soon then individual states and territory governments will and should progress their own preferred approach. It would be preferable that some markets rather than none benefit from facilitating competition”.

“Over time, other jurisdictions could replicate the developed pro-competition market model. The ACCC encourages action be taken now by ARNECC and each state and territory’s relevant policymakers.

“The ACCC is concerned that further delays in progressing the development of an appropriate market structure will fragment the national market and/or entrench a monopoly service provider model.”

More to come.

‘No longer fit for purpose’: ACCC weighs in on e-conveyancing framework
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